I recently received an email from a reader who asked if I knew of any good resources on drafting legislation. At the time, nothing specific came to mind, and I made a note to myself to do some investigating when time permitted. This week, time finally permitted.
I always start these investigations by looking through the hundreds of books on my office shelves.1 I receive exam copies of legal writing books on a weekly basis, and often, if I look patiently, I can find one that meets a particular need. So yesterday, I began skimming titles, looking for something pertaining to legislative drafting. And lo and behold, right there it was: Plain English for Drafting Statutes and Rules.2
It’s a thin little volume—just 124 pages, not counting the appendices—but there is a wealth of good advice packed into it. So I’ll begin by recommending the book to anyone whose legal writing work includes legislative drafting. Then, in the rest of this column and the next one, I’ll summarize some of the book’s key points. Tellingly, the first unit of the book is entitled, “Why Statutory and Rule Drafting Is So Poor and How to Improve It.” The authors posit that poorly drafted statutes are common due to “the almost universal misperception of lawyers that they are expert legal drafters.”3
They then emphasize that the “evils” flowing from a poorly drafted statute are even more serious than those flowing from a poorly drafted private legal document; a statute, they say, affects the public at large, whose ability to understand their rights and duties under the statute is fundamental to its effectiveness.4
The authors proceed from the assumption that the way to improve poor statutory drafting is to use plain English.5 This hardly seems surprising; as I mentioned in an earlier column, Congress itself recognized the value of plain English in 2010, when it passed the Plain Writing Act.6 The authors state their thesis as follows: “There is no excuse for a drafter of a statute or rule to use any drafting style that is not designed to make a statute or rule as clear and as understandable as possible to the general public or to use any words that are not in common usage.”7 In this vein, the authors set forth several overarching drafting principles; I’ve chosen three of them to highlight here.
Use simple declarative sentences. These, say the authors, are the statute or rule drafter’s best friends. “The subject is a noun, the predicate is a verb [plus] the object or complement of the verb. Put them together, sentence after sentence, and the result is a statute or rule that expresses the intent of the proponent … in language that can be understood by those who are governed by it, i.e., the public.”8
The authors use the acronym SAPP to capture the four key rules for drafting simple declarative sentences:9
S—Singular (not plural) verb
A—Active (not passive) voice
P—Present (not future) tense
P—Positive (not negative) form.
Using SAPP will naturally result in shorter sentences. This is counterintuitive to many drafters, say the authors, who often think they should put the basic legal proposition and all qualifications or exceptions to it in the same sentence. “One justification for doing so is a fear that a reader, and particularly a judge, may overlook or ignore the qualification if it is not contained in the same sentence of the legal rule it is qualifying. This fear has no legal basis and should not be an argument for one long sentence rather than a series of short sentences.”10
Punctuate with care. Noting that courts rely heavily on punctuation in interpreting statutes and rules, the authors emphasize several key rules of punctuation that will help judges avoid misinterpretation.
1. Use a colon only to introduce a tabulation, not to introduce a proviso.
2. Use a semicolon only in a tabulation of clauses to separate the clauses tabulated, not as a substitute for a period to separate independent clauses.
3. Use a comma before “and” or “or” when the last two items in a series or list are separate items. (This is the so-called “serial comma.” The authors acknowledge that the serial comma has its detractors, but they assert that “the need for clarity in a statute or rule demands” its use.)11
Tabulate with clarity. The authors recommend tabulating a recital of “three or more of anything—nouns, verbs, objects, complements, exceptions, qualifiers, or limitations.”12 The items tabulated should be of the same class, “so that the sentence would read properly if only one of the words were included in the sentence.”13 The authors note two principal benefits of tabulation. The obvious one is that it makes the sentence easier to understand. The less obvious one is that “it helps both the drafter and the proponent identify the various options available to expand or narrow the effect of the statute or rule being drafted.”14
As I’ve worked on this column, I’ve gained a new appreciation for what a complex and delicate task drafting a statute can be. It would be impossible to cover in one or two short columns the many interwoven considerations that dictate how particular statutes should be worded. My goal in this column and the next is simply to alert you to the Martineaus’ book and other helpful online resources available to drafters of statutes and rules. If you have a particular resource you’ve found useful in this regard, please take a moment to email me so that I can share it with the readership.
Laura Graham, Assistant Director of Legal Analysis, Writing & Research, is a professor of legal writing at Wake Forest University School of Law, where she has taught for 17 years. She welcomes email from readers at firstname.lastname@example.org.
This article appears in the May 2016 edition of North Carolina Lawyer. NCBA members, access a virtual edition of the magazine online.
1 My very first step in this particular search was to see whether North Carolina has a bill drafting manual of any kind. According to the National Conference of State Legislatures webpage, many states have such manuals; but North Carolina is not one of them. See http://www.ncsl.org/legislators-staff/legislativestaff/legal-services/bill-drafting-manuals.aspx.
2 Robert J. Martineau & Robert J. Martineau, Jr., Plain English for Drafting Statutes and Rules (LexisNexis 2012).
3 Id. at 5.
4 Id. 5 Id. at 10.
6 5 U.S.C. § 301 note (2012). Interestingly, the Plain Language Act does not apply to federal statutes or administrative rules.
7 Martineau & Martineau, Jr., supra n.2, at 9-10.
8 Id. at 105.
9 Id. See also Kenneth L. Rosebaum, Legislative Drafting Guide: A Practitioner’s View (2007), available at http://www.fao.org/fileadmin/user_upload/ legal/docs/lpo64.pdf.
10 Martineau & Martineau, Jr., supra n.2, at 105.
11 Id. at 114-15.
12 Id. at 116.